jbs84ex4_2.htm


     

    
       

      Exhibit
4.2

       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      THE
EXECUTIVE NONQUALIFIED EXCESS PLAN

      PLAN
DOCUMENT

       

       

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      THE
EXECUTIVE NONQUALIFIED EXCESS PLAN

       

      Section
1.            Purpose:

       

      By
execution of the Adoption Agreement, the Employer has adopted the Plan set forth
herein, and in the Adoption Agreement, to provide a means by which certain
management Employees or Independent Contractors of the Employer may elect to
defer receipt of current Compensation from the Employer in order to provide
retirement and other benefits on behalf of such Employees or Independent
Contractors of the Employer, as selected in the Adoption Agreement. The Plan is
intended to be a nonqualified deferred compensation plan that complies with the
provisions of Section 409A of the Internal Revenue Code (the "Code"). The Plan
is also intended to be an unfunded plan maintained primarily for the purpose of
providing deferred compensation benefits for a select group of management or
highly compensated employees under Sections 201(2), 301(a)(3) and 401(a)(l) of
the Employee Retirement Income Security Act of 1974 ("ERISA") and independent
contractors. Notwithstanding any other provision of this Plan, this Plan shall
be interpreted, operated and administered in a manner consistent with these
intentions.

       

      Section
2.            Definitions:

       

      As used
in the Plan, including this Section 2, references to one gender shall include
the other, unless otherwise indicated by the context:

       

      2.1           "Active Participant" means,
with respect to any day or date, a Participant who is in Service on such day or
date; provided, that a Participant shall cease to be an Active Participant (i)
immediately upon a determination by the Committee that the Participant has
ceased to be an Employee or Independent Contractor, or (ii) at the end of the
Plan Year that the Committee determines the Participant no longer meets the
eligibility requirements of the Plan.

       

      2.2           "Adoption Agreement" means the
written agreement pursuant to which the Employer adopts the Plan. The Adoption
Agreement is a part of the Plan as applied to the Employer.

       

      2.3           "Beneficiary" means the
person, persons, entity or entities designated or determined pursuant to the
provisions of Section 13 of the Plan.

       

      2.4           "Board" means the Board of
Directors of the Company, if the Company is a corporation. If the Company is not
a corporation, "Board" shall mean the Company.

       

      2.5           "Change in Control Event"
means an event described in Section 409A(a)(2)(A)(v) of the Code (or any
successor provision thereto) and the regulations thereunder.

       

      2.6           "Committee" means the persons
or entity designated in the Adoption Agreement to administer the Plan. If the
Committee designated in the Adoption Agreement is unable to serve, the Employer
shall satisfy the duties of the Committee provided for in Section
9.

       

      2.7           "Company" means the company
designated in the Adoption Agreement as such.

       

      2.8           "Compensation" shall have the
meaning designated in the Adoption Agreement.

       

      2.9           "Crediting Date" means the
date designated in the Adoption Agreement for crediting the amount of any
Participant Deferral Credits to the Deferred Compensation Account of a
Participant. Employer Credits may be credited to the Deferred Compensation
Account of a Participant on any day that securities are traded on a national
securities exchange.

       

      2.10           "Deferred Compensation Account"
means the account maintained with respect to each Participant under the
Plan. The Deferred Compensation Account shall be credited with Participant
Deferral Credits and Employer Credits, credited or debited for deemed investment
gains or losses, and adjusted for payments in accordance with the rules and
elections in effect under Section 8. The Deferred Compensation Account of a
Participant shall include any In-Service or Education Account of the
Participant, if applicable.

       

      2.11           "Disabled" means Disabled
within the meaning of Section 409A of the Code and the regulations thereunder.
Generally, this means that the Participant is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, or is, by reason of any
medically determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not less
than three months under an accident and health plan covering Employees of the
Employer.

       

      2.12           "Education Account" is an
In-Service Account which will be used by the Participant for educational
purposes.

       

      2.13           "Effective Date" shall be the
date designated in the Adoption Agreement.

       

      2.14           "Employee" means an individual
in the Service of the Employer if the relationship between the individual and
the Employer is the legal relationship of employer and employee. An individual
shall cease to be an Employee upon the Employee's separation from
Service.

       

      2.15           "Employer" means the Company,
as identified in the Adoption Agreement, and any Participating Employer which
adopts this Plan. An Employer may be a corporation, a limited liability company,
a partnership or sole proprietorship.

       

      2.16           "Employer Credits" means the
amounts credited to the Participant's Deferred Compensation Account by the
Employer pursuant to the provisions of Section 4.2.

       

      2.17           "Grandfathered Amounts" means,
if applicable, the amounts that were deferred under the Plan and were earned and
vested within the meaning of Section 409A of the Code and regulations thereunder
as of December 31, 2004. Grandfathered Amounts shall be subject to the terms
designated in the Adoption Agreement.

       

      2.18           "Independent Contractor" means
an individual in the Service of the Employer if the relationship between the
individual and the Employer is not the legal relationship of employer and
employee. An individual shall cease to be an Independent Contractor upon the
termination of the Independent Contractor's Service. An Independent Contractor
shall include a director of the Employer who is not an Employee.

       

      2.19           "In-Service Account" means a
separate account to be kept for each Participant that has elected to take
in-service distributions as described in Section 5.4. The In-Service Account
shall be adjusted in the same manner and at the same time as the Deferred
Compensation Account under Section 8 and in accordance with the rules and
elections in effect under Section 8.

       

      2.20           "Normal Retirement Age" of a
Participant means the age designated in the Adoption Agreement.

       

      2.21           "Participant" means with
respect to any Plan Year an Employee or Independent Contractor who has been
designated by the Committee as a Participant and who has entered the Plan or who
has a Deferred Compensation Account under the Plan; provided that if the
Participant is an Employee, the individual must be a highly compensated or
management employee of the Employer within the meaning of Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA.

       

      2.22           "Participant Deferral Credits"
means the amounts credited to the Participant's Deferred Compensation
Account by the Employer pursuant to the provisions of Section 4.1.

       

      2.23           "Participating Employer" means
any trade or business (whether or not incorporated) which adopts this Plan with
the consent of the Company identified in the Adoption Agreement.

       

      2.24           "Participation Agreement"
means a written agreement entered into between a Participant and the
Employer pursuant to the provisions of Section 4.1

       

      2.25           "Performance-Based Compensation"
means compensation where the amount of, or entitlement to, the
compensation is contingent on the satisfaction of preestablished organizational
or individual performance criteria relating to a performance period of at least
twelve months. Organizational or individual performance criteria are considered
preestablished if established in writing within 90 days after the commencement
of the period of service to which the criteria relates, provided that the
outcome is substantially uncertain at the time the criteria are established.
Performance-based compensation may include payments based upon subjective
performance criteria as provided in regulations and administrative guidance
promulgated under Section 409A of the Code.

       

      2.26           "Plan" means The Executive
Nonqualified Excess Plan, as herein set out and as set out in the Adoption
Agreement, or as duly amended. The name of the Plan as applied to the Employer
shall be designated in the Adoption Agreement.

       

      2.27           "Plan-Approved Domestic Relations
Order" shall mean a judgment, decree, or order (including the approval of
a settlement agreement) which is:

       

      2.27.1           Issued
pursuant to a State's domestic relations law;

       

      2.27.2           Relates
to the provision of child support, alimony payments or marital property rights
to a Spouse, former Spouse, child or other dependent of the
Participant;

       

      2.27.3           Creates
or recognizes the right of a Spouse, former Spouse, child or other dependent of
the Participant to receive all or a portion of the Participant's benefits under
the Plan;

       

      2.27.4           Requires
payment to such person of their interest in the Participant's benefits in an
immediate lump payment; and

       

      2.27.5           Meets
such other requirements established by the Committee.

       

      2.28           "Plan Year" means the
twelve-month period ending on the last day of the month designated in the
Adoption Agreement; provided that the initial Plan Year may have fewer than
twelve months.

       

      2.29           "Qualifying Distribution Event"
means (i) the Separation from Service of the Participant, (ii) the date
the Participant becomes Disabled, (iii) the death of the Participant, (iv) the
time specified by the Participant for an In-Service or Education Distribution,
(v) a Change in Control Event, or (vi) an Unforeseeable Emergency, each to the
extent provided in Section 5.

       

      2.30           "Seniority Date" shall have
the meaning designated in the Adoption Agreement.

       

      2.31           "Separation from Service" or
"Separates from Service"
means a "separation from service" within the meaning of Section 409A of
the Code.

       

      2.32           "Service" means employment by
the Employer as an Employee. For purposes of the Plan, the employment
relationship is treated as continuing intact while the Employee is on military
leave, sick leave, or other bona fide leave of absence if the period of such
leave does not exceed six months, or if longer, so long as the Employee's right
to reemployment is provided either by statute or contract. If the Participant is
an Independent Contractor, "Service" shall mean the period during which the
contractual relationship exists between the Employer and the Participant. The
contractual relationship is not terminated if the Participant anticipates a
renewal of the contract or becomes an Employee.

       

      2.33           "Service Bonus" means any
bonus paid to a Participant by the Employer which is not Performance-Based
Compensation.

       

      2.34           "Specified Employee" means an
employee who meets the requirements for key employee treatment under Section
416(i)(l)(A)(i), (ii) or (iii) of the Code (applied in accordance with the
regulations thereunder and without regard to Section 416(i)(5) of the Code) at
any time during the twelve month period ending on December 31 of each year (the
"identification date"). Unless binding corporate action is taken to establish
different rules for determining Specified Employees for all plans of the Company
and its controlled group members that are subject to Section 409A of the Code,
the foregoing rules and the other default rules under the regulations of Section
409A of the Code shall apply. If the person is a key employee as of any
identification date, the person is treated as a Specified Employee for the
twelve-month period beginning on the first day of the fourth month following the
identification date.

       

      2.35           "Spouse" or ''Surviving Spouse" means,
except as otherwise provided in the Plan, a person who is the legally married
spouse or surviving spouse of a Participant.

       

      2.36           "Unforeseeable Emergency"
means an "unforeseeable emergency" within the meaning of Section 409A of
the Code.

       

      2.37           "Years of Service" means each
Plan Year of Service completed by the Participant. For vesting purposes, Years
of Service shall be calculated from the date designated in the Adoption
Agreement and Service shall be based on service with the Company and all
Participating Employers.

       

      Section
3.            Participation:

       

      The
Committee in its discretion shall designate each Employee or Independent
Contractor who is eligible to participate in the Plan. A Participant who
separates from Service with the Employer and who later returns to Service will
not be an Active Participant under the Plan except upon satisfaction of such
terms and conditions as the Committee shall establish upon the Participant's
return to Service, whether or not the Participant shall have a balance remaining
in the Deferred Compensation Account under the Plan on the date of the return to
Service.

       

      Section
4.            Credits to Deferred
Compensation Account:

       

      4.1           Participant Deferral Credits.
To the extent provided in the Adoption Agreement, each Active Participant
may elect, by entering into a Participation Agreement with the Employer, to
defer the receipt of Compensation from the Employer by a dollar amount or
percentage specified in the Participation Agreement. The amount of Compensation
the Participant elects to defer, the Participant Deferral Credit, shall be
credited by the Employer to the Deferred Compensation Account maintained for the
Participant pursuant to Section 8. The following special provisions shall apply
with respect to the Participant Deferral Credits of a Participant:

       

      4.1.1           The
Employer shall credit to the Participant's Deferred Compensation Account on each
Crediting Date an amount equal to the total Participant Deferral Credit for the
period ending on such Crediting Date.

       

      4.1.2           An
election pursuant to this Section 4.1 shall be made by the Participant by
executing and delivering a Participation Agreement to the Committee. Except as
otherwise provided in this Section 4.1, the Participation Agreement shall become
effective with respect to such Participant as of the first day of January
following the date such Participation Agreement is received by the Committee. A
Participant's election may be changed at any time prior to the last permissible
date for making the election as permitted in this Section 4.1, and shall
thereafter be irrevocable. The election of a Participant shall continue in
effect for subsequent years until modified by the Participant as permitted in
this Section 4.1.

       

      4.1.3           A
Participant may execute and deliver a Participation Agreement to the Committee
within 30 days after the date the Participant first becomes eligible to
participate in the Plan to be effective as of the first payroll period next
following the date the Participation Agreement is fully executed. Whether a
Participant is treated as newly eligible for participation under this Section
shall be determined in accordance with Section 409A of the Code and the
regulations thereunder, including (i) rules that treat all elective deferral
account balance plans as one plan, and (ii) rules that treat a previously
eligible employee as newly eligible if his benefits had been previously
distributed or if he has been ineligible for 24 months. For Compensation that is
earned based upon a specified performance period (for example, an annual bonus),
where a deferral election is made under this Section but after the beginning of
the performance period, the election will only apply to the portion of the
Compensation equal to the total amount of the Compensation for the service
period multiplied by the ratio of the number of days remaining in the
performance period after the election over the total number of days in the
performance period.

       

      4.1.4           A
Participant may unilaterally modify a Participation Agreement (either to
terminate, increase or decrease the portion of his future Compensation which is
subject to deferral within the percentage limits set forth in Section 4.1 of the
Adoption Agreement) by providing a written modification of the Participation
Agreement to the Committee. The modification shall become effective as of the
first day of January following the date such written modification is received by
the Committee.

       

      4.1.5           If
the Participant performed services continuously from the later of the beginning
of the performance period or the date upon which the performance criteria are
established through the date upon which the Participant makes an initial
deferral election, a Participation Agreement relating to the deferral of
Performance-Based Compensation may be executed and delivered to the Committee no
later than the date which is 6 months prior to the end of the performance
period, provided that in no event may an election to defer Performance-Based
Compensation be made after such Compensation has become readily
ascertainable.

       

      4.1.6           If
the Employer has a fiscal year other than the calendar year, Compensation
relating to Service in the fiscal year of the Employer (such as a bonus based on
the fiscal year of the Employer), of which no amount is paid or payable during
the fiscal year, may be deferred at the Participant's election if the election
to defer is made not later than the close of the Employer's fiscal year next
preceding the first fiscal year in which the Participant performs any services
for which such Compensation is payable.

       

      4.1.7           Compensation
payable after the last day of the Participant's taxable year solely for services
provided during the final payroll period containing the last day of the
Participant's taxable year (i.e., December 31) is treated for purposes of this
Section 4.1 as Compensation for services performed in the subsequent taxable
year.

       

      4.1.8           The
Committee may from time to time establish policies or rules consistent with the
requirements of Section 409A of the Code to govern the manner in which
Participant Deferral Credits may be made.

       

      4.1.9           If
a Participant becomes Disabled or applies for and is eligible for a distribution
on account of an Unforeseeable Emergency during a Plan Year, his deferral
election for such Plan Year shall be cancelled.

       

      4.2           Employer Credits. If
designated by the Employer in the Adoption Agreement, the Employer shall cause
the Committee to credit to the Deferred Compensation Account of each Active
Participant an Employer Credit as determined in accordance with the Adoption
Agreement. A Participant must make distribution elections with respect to any
Employer Credits credited to his Deferred Compensation Account by the deadline
that would apply under Section 4.1 for distribution elections with respect to
Participant Deferral Credits credited at the same time, on a Participation
Agreement that is timely executed and delivered to the Committee pursuant to
Section 4.1.

       

      4.3           Deferred Compensation Account.
All Participant Deferral Credits and Employer Credits shall be credited
to the Deferred Compensation Account of the Participant as provided in Section
8.

       

      Section
5.            Qualifying Distribution
Events:

       

      5.1           Separation from Service. If
the Participant Separates from Service with the Employer, the vested balance in
the Deferred Compensation Account shall be paid to the Participant by the
Employer as provided in Section 7. Notwithstanding the foregoing, no
distribution shall be made earlier than six months after the date of Separation
from Service (or, if earlier, the date of death) with respect to a Participant
who as of the date of Separation from Service is a Specified Employee of a
corporation the stock in which is traded on an established securities market or
otherwise. Any payments to which such Specified Employee would be entitled
during the first six months following the date of Separation from Service shall
be accumulated and paid on the first day of the seventh month following the date
of Separation from Service.

       

      5.2           Disability. If the Employer
designates in the Adoption Agreement that distributions are permitted under the
Plan when a Participant becomes Disabled, and the Participant becomes Disabled
while in Service, the vested balance in the Deferred Compensation Account shall
be paid to the Participant by the Employer as provided in Section
7.

       

      5.3           Death. If the Participant dies
while in Service, the Employer shall pay a benefit to the Participant's
Beneficiary in the amount designated in the Adoption Agreement. Payment of such
benefit shall be made by the Employer as provided in Section 7.

       

      5.4           In-Service or Education
Distributions. If the Employer designates in the Adoption Agreement that
in-service or education distributions are permitted under the Plan, a
Participant may designate in the Participation Agreement to have a specified
amount credited to the Participant's In-Service or Education Account for
in-service or education distributions at the date specified by the Participant.
In no event may an in-service or education distribution of an amount be made
before the date that is two years after the first day of the year in which such
amount was credited to the In-Service or Education Account. Notwithstanding the
foregoing, if a Participant incurs a Qualifying Distribution Event prior to the
date on which the entire balance in the In-Service or Education Account has been
distributed, then the balance in the In-Service or Education Account on the date
of the Qualifying Distribution Event shall be paid as provided under Section 7.1
for payments on such Qualifying Distribution Event.

       

      5.5           Change in Control Event. If
the Employer designates in the Adoption Agreement that distributions are
permitted under the Plan upon the occurrence of a Change in Control Event, the
Participant may designate in the Participation Agreement to have the vested
balance in the Deferred Compensation Account paid to the Participant upon a
Change in Control Event by the Employer as provided in Section 7.

       

      5.6           Unforeseeable Emergency. If
the Employer designates in the Adoption Agreement that distributions are
permitted under the Plan upon the occurrence of an Unforeseeable Emergency
event, a distribution from the Deferred Compensation Account may be made to a
Participant in the event of an Unforeseeable Emergency, subject to the following
provisions:

       

      5.6.1           A
Participant may, at any time prior to his Separation from Service for any
reason, make application to the Committee to receive a distribution in a lump
sum of all or a portion of the vested balance in the Deferred Compensation
Account (determined as of the date the distribution, if any, is made under this
Section 5.6) because of an Unforeseeable Emergency. A distribution because of an
Unforeseeable Emergency shall not exceed the amount required to satisfy the
Unforeseeable Emergency plus amounts necessary to pay taxes reasonably
anticipated as a result of such distribution, after taking into account the
extent to which the Unforeseeable Emergency may be relieved through
reimbursement or compensation by insurance or otherwise or by liquidation of the
Participant's assets (to the extent the liquidation of such assets would not
itself cause severe financial hardship) or by stopping current deferrals under
the Plan pursuant to Section 4.1.9.

       

      5.6.2           The
Participant's request for a distribution on account of Unforeseeable Emergency
must be made in writing to the Committee. The request must specify the nature of
the financial hardship, the total amount requested to be distributed from the
Deferred Compensation Account, and the total amount of the actual expense
incurred or to be incurred on account of the Unforeseeable
Emergency.

       

      5.6.3           If
a distribution under this Section 5.6 is approved by the Committee, such
distribution will be made as soon as practicable following the date it is
approved. The processing of the request shall be completed as soon as
practicable from the date on which the Committee receives the properly completed
written request for a distribution on account of an Unforeseeable Emergency. If
a Participant's Separation from Service occurs after a request is approved in
accordance with this Section 5.6.3, but prior to distribution of the full amount
approved, the approval of the request shall be automatically null and void and
the benefits which the Participant is entitled to receive under the Plan shall
be distributed in accordance with the applicable distribution provisions of the
Plan.

       

      5.6.4           The
Committee may from time to time adopt additional policies or rules consistent
with the requirements of Section 409A of the Code to govern the manner in which
such distributions may be made so that the Plan may be conveniently
administered.

       

      Section
6.            Vesting:

       

      A
Participant shall be fully vested in the portion of his Deferred Compensation
Account attributable to Participant Deferral Credits, and all income, gains and
losses attributable thereto. A Participant shall become fully vested in the
portion of his Deferred Compensation Account attributable to Employer Credits,
and income, gains and losses attributable thereto, in accordance with the
vesting schedule and provisions designated by the Employer in the Adoption
Agreement. If a Participant's Deferred Compensation Account is not fully vested
upon Separation from Service, the portion of the Deferred Compensation Account
that is not fully vested shall thereupon be forfeited.

       

      Section
7.            Distribution
Rules:

       

      7.1           Payment Options. The Employer
shall designate in the Adoption Agreement the payment options which may be
elected by the Participant (lump sum, annual installments, or a combination of
both). Different payment options may be made available for each Qualifying
Distribution Event, and different payment options may be available for different
types of Separations from Service, all as designated in the Adoption Agreement.
The Participant shall elect in the Participation Agreement the method under
which the vested balance in the Deferred Compensation Account will be
distributed from among the designated payment options. The Participant may at
such time elect a different method of payment for each Qualifying Distribution
Event as specified in the Adoption Agreement. If the Participant is permitted by
the Employer in the Adoption Agreement to elect different payment options and
does not make a valid election, the vested balance in the Deferred Compensation
Account will be distributed as a lump sum.

       

      Notwithstanding
the foregoing, if certain Qualifying Distribution Events occur prior to the date
on which the vested balance of a Participant's Deferred Compensation Account is
completely paid pursuant to this Section 7.1 following the occurrence of certain
initial Qualifying Distribution Events, the following rules apply:

       

      7.1.1           If
the initial Qualifying Distribution Event is a Separation from Service or
Disability, and the Participant subsequently dies, the remaining unpaid vested
balance of a Participant's Deferred Compensation Account shall be paid as a lump
sum.

       

      7.1.2           If
the initial Qualifying Distribution Event is a Change in Control Event, and any
subsequent Qualifying Distribution Event occurs (except an In-Service or
Education Distribution described in Section 2.29(iv)), the remaining unpaid
vested balance of a Participant's Deferred Compensation Account shall be paid as
provided under Section 7.1 for payments on such subsequent Qualifying
Distribution Event.

       

      7.2           Timing of Payments. Payment
shall be made in the manner elected by the Participant and shall commence as
soon as practicable after (but no later than 60 days after) the distribution
date elected for the Qualifying Distribution Event. In the event the Participant
fails to make a valid election of the payment method, the distribution will be
made in a single lump sum payment as soon as practicable after (but no later
than 60 days after) the Qualifying Distribution Event. A payment may be further
delayed to the extent permitted in accordance with regulations and guidance
under Section 409A of the Code.

       

      7.3           Installment Payments. If the
Participant elects to receive installment payments upon a Qualifying
Distribution Event, the payment of each annual installment shall be made on the
anniversary of the date of the first installment payment, and the amount of the
annual installment shall be adjusted on such anniversary for credits or debits
to the Participant's account pursuant to Section 8 of the Plan. Such adjustment
shall be made by dividing the balance in the Deferred Compensation Account on
such date by the number of annual installments remaining to be paid hereunder;
provided that the last annual installment due under the Plan shall be the entire
amount credited to the Participant's account on the date of
payment.

       

      7.4           De Minimis Amounts.
Notwithstanding any payment election made by the Participant, if the
Employer designates a pre-determined de minimis amount in the Adoption
Agreement, the vested balance in the Deferred Compensation Account of the
Participant will be distributed in a single lump sum payment if at the time of a
permitted Qualifying Distribution Event the vested balance does not exceed such
pre-determined de minimis amount; provided, however, that such distribution will
be made only where the Qualifying Distribution Event is a Separation from
Service, death, Disability (if applicable) or Change in Control Event (if
applicable). Such payment shall be made on or before the later of (i) December
31 of the calendar year in which the Qualifying Distribution Event occurs, or
(ii) the date that is 2-1/2 months after the Qualifying Distribution Event
occurs. In addition, the Employer may distribute a Participant's vested balance
at any time if the balance does not exceed the limit in Section 402(g)(1)(B) of
the Code and results in the termination of the Participant's entire interest in
the Plan as provided under Section 409A of the Code.

       

      7.5           Subsequent Elections. With the
consent of the Committee, a Participant may delay or change the method of
payment of the Deferred Compensation Account subject to the following
requirements:

       

      7.5.1           The
new election may not take effect until at least 12 months after the date on
which the new election is made.

       

      7.5.2           If
the new election relates to a payment for a Qualifying Distribution Event other
than the death of the Participant, the Participant becoming Disabled, or an
Unforeseeable Emergency, the new election must provide for the deferral of the
payment for a period of at least five years from the date such payment would
otherwise have been made.

       

      7.5.3           If
the new election relates to a payment from the In-Service or Education Account,
the new election must be made at least 12 months prior to the date of the first
scheduled payment from such account.

       

      For
purposes of this Section 7.5 and Section 7.6, a payment is each separately
identified amount to which the Participant is entitled under the Plan; provided,
that entitlement to a series of installment payments is treated as the
entitlement to a single payment.

       

      7.6           Acceleration Prohibited. The
acceleration of the time or schedule of any payment due under the Plan is
prohibited except as expressly provided in regulations and administrative
guidance promulgated under Section 409A of the Code (such as accelerations for
domestic relations orders and employment taxes). It is not an acceleration of
the time or schedule of payment if the Employer waives or accelerates the
vesting requirements applicable to a benefit under the Plan.

       

      Section
8.            Accounts; Deemed Investment;
Adjustments to Account:

       

      8.1           Accounts. The Committee shall
establish a book reserve account, entitled the "Deferred Compensation Account,"
on behalf of each Participant. The Committee shall also establish an In-Service
or Education Account as a part of the Deferred Compensation Account of each
Participant, if applicable. The amount credited to the Deferred Compensation
Account shall be adjusted pursuant to the provisions of Section
8.3.

       

      8.2           Deemed Investments. The
Deferred Compensation Account of a Participant shall be credited with an
investment return determined as if the account were invested in one or more
investment funds made available by the Committee. The Participant shall elect
the investment funds in which his Deferred Compensation Account shall be deemed
to be invested. Such election shall be made in the manner prescribed by the
Committee and shall take effect upon the entry of the Participant into the Plan.
The investment election of the Participant shall remain in effect until a new
election is made by the Participant. In the event the Participant fails for any
reason to make an effective election of the investment return to be credited to
his account, the investment return shall be determined by the
Committee.

       

      8.3           Adjustments to Deferred Compensation
Account. With respect to each Participant who has a Deferred Compensation
Account under the Plan, the amount credited to such account shall be adjusted by
the following debits and credits, at the times and in the order
stated:

       

      8.3.1           The
Deferred Compensation Account shall be debited each business day with the total
amount of any payments made from such account since the last preceding business
day to him or for his benefit.

       

      8.3.2           The
Deferred Compensation Account shall be credited on each Crediting Date with the
total amount of any Participant Deferral Credits and Employer Credits to such
account since the last preceding Crediting Date.

       

      8.3.3           The
Deferred Compensation Account shall be credited or debited on each day
securities are traded on a national stock exchange with the amount of deemed
investment gain or loss resulting from the performance of the investment funds
elected by the Participant in accordance with Section 8.2. The amount of such
deemed investment gain or loss shall be determined by the Committee and such
determination shall be final and conclusive upon all concerned.

       

      Section
9.            Administration by
Committee:

       

      9.1           Membership of Committee. If
the Committee consists of individuals appointed by the Board, they will serve at
the pleasure of the Board. Any member of the Committee may resign, and his
successor, if any, shall be appointed by the Board.

       

      9.2           General Administration. The
Committee shall be responsible for the operation and administration of the Plan
and for carrying out its provisions. The Committee shall have the full authority
and discretion to make, amend, interpret, and enforce all appropriate rules and
regulations for the administration of this Plan and decide or resolve any and
all questions, including interpretations of this Plan, as may arise in
connection with this Plan. Any such action taken by the Committee shall be final
and conclusive on any party. To the extent the Committee has been granted
discretionary authority under the Plan, the Committee's prior exercise of such
authority shall not obligate it to exercise its authority in a like fashion
thereafter. The Committee shall be entitled to rely conclusively upon all
tables, valuations, certificates, opinions and reports furnished by any actuary,
accountant, controller, counsel or other person employed or engaged by the
Employer with respect to the Plan. The Committee may, from time to time, employ
agents and delegate to such agents, including employees of the Employer, such
administrative or other duties as it sees fit.

       

      9.3           Indemnification. To the extent
not covered by insurance, the Employer shall indemnify the Committee, each
employee, officer, director, and agent of the Employer, and all persons formerly
serving in such capacities, against any and all liabilities or expenses,
including all legal fees relating thereto, arising in connection with the
exercise of their duties and responsibilities with respect to the Plan, provided
however that the Employer shall not indemnify any person for liabilities or
expenses due to that person's own gross negligence or willful
misconduct

       

      Section
10.            Contractual
Liability:

       

      10.1           Contractual Liability. Unless
otherwise elected in the Adoption Agreement, the Company shall be obligated to
make all payments hereunder. This obligation shall constitute a contractual
liability of the Company to the Participants, and such payments shall be made
from the general funds of the Company. The Company shall not be required to
establish or maintain any special or separate fund, or otherwise to segregate
assets to assure that such payments shall be made, and the Participants shall
not have any interest in any particular assets of the Company by reason of its
obligations hereunder. To the extent that any person acquires a right to receive
payment from the Company, such right shall be no greater than the right of an
unsecured creditor of the Company.

       

      10.2           Trust. The Employer may
establish a trust to assist it in meeting its obligations under the Plan. Any
such trust shall conform to the requirements of a grantor trust under Revenue
Procedures 92-64 and 92-65 and at all times during the continuance of the trust
the principal and income of the trust shall be subject to claims of general
creditors of the Employer under federal and state law. The establishment of such
a trust would not be intended to cause Participants to realize current income on
amounts contributed thereto, and the trust would be so interpreted and
administered.

       

      Section
11.            Allocation of
Responsibilities:

       

      The
persons responsible for the Plan and the duties and responsibilities allocated
to each are as follows:

       

      11.1           Board.

       

      
        	
                 
      

              	
                (i)

              	
                To
      amend the Plan;

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                To
      appoint and remove members of the Committee;
and

              


      

       

      
        	
                 
      

              	
                (iii)

              	
                To
      terminate the Plan as permitted in Section
14.

              


      

       

      11.2           Committee.

       

      
        	
                 
      

              	
                (i)

              	
                To
      designate Participants;

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                To
      interpret the provisions of the Plan and to determine the rights of the
      Participants under the Plan, except to the extent otherwise provided in
      Section 16 relating to claims
procedure;

              


      

       

      
        	
                 
      

              	
                (iii)

              	
                To
      administer the Plan in accordance with its terms, except to the extent
      powers to administer the Plan are specifically delegated to another person
      or persons as provided in the Plan;

              


      

       

      
        	
                 
      

              	
                (iv)

              	
                To
      account for the amount credited to the Deferred Compensation Account of a
      Participant;

              


      

       

      
        	
                 
      

              	
                (v)

              	
                To
      direct the Employer in the payment of
benefits;

              


      

       

      
        	
                 
      

              	
                (vi)

              	
                To
      file such reports as may be required with the United States Department of
      Labor, the Internal Revenue Service and any other government agency to
      which reports may be required to be submitted from time to time;
      and

              


      

       

      
        	
                 
      

              	
                (vii)

              	
                To
      administer the claims procedure to the extent provided in Section
      16.

              


      

       

      Section
12.            Benefits Not Assignable;
Facility of Payments:

       

      12.1           Benefits Not Assignable. No
portion of any benefit credited or paid under the Plan with respect to any
Participant shall be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same shall be void, nor shall any portion of such benefit be in any manner
payable to any assignee, receiver or any one trustee, or be liable for his
debts, contracts, liabilities, engagements or torts. Notwithstanding the
foregoing, in the event that all or any portion of the benefit of a Participant
is transferred to the former Spouse of the Participant incident to a divorce,
the Committee shall maintain such amount for the benefit of the former Spouse
until distributed in the manner required by an order of any court having
jurisdiction over the divorce, and the former Spouse shall be entitled to the
same rights as the Participant with respect to such benefit.

       

      12.2           Plan-Approved Domestic Relations
Orders. The Committee shall establish procedures for determining whether
an order directed to the Plan is a Plan- Approved Domestic Relations Order. If
the Committee determines that an order is a Plan-Approved Domestic Relations
Order, the Committee shall cause the payment of amounts pursuant to or segregate
a separate account as provided by (and to prevent any payment or act which might
be inconsistent with) the Plan-Approved Domestic Relations Order.

       

      12.3           Payments to Minors and Others.
If any individual entitled to receive a payment under the Plan shall be
physically, mentally or legally incapable of receiving or acknowledging receipt
of such payment, the Committee, upon the receipt of satisfactory evidence of his
incapacity and satisfactory evidence that another person or institution is
maintaining him and that no guardian or committee has been appointed for him,
may cause any payment otherwise payable to him to be made to such person or
institution so maintaining him. Payment to such person or institution shall be
in full satisfaction of all claims by or through the Participant to the extent
of the amount thereof.

       

      Section
13.            Beneficiary:

       

      The
Participant's beneficiary shall be the person, persons, entity or entities
designated by the Participant on the beneficiary designation form provided by
and filed with the Committee or its designee. If the Participant does not
designate a beneficiary, the beneficiary shall be his Surviving Spouse. If the
Participant does not designate a beneficiary and has no Surviving Spouse, the
beneficiary shall be the Participant's estate. The designation of a beneficiary
may be changed or revoked only by filing a new beneficiary designation form with
the Committee or its designee. If a beneficiary (the "primary beneficiary") is
receiving or is entitled to receive payments under the Plan and dies before
receiving all of the payments due him, the balance to which he is entitled shall
be paid to the contingent beneficiary, if any, named in the Participant's
current beneficiary designation form. If there is no contingent beneficiary, the
balance shall be paid to the estate of the primary beneficiary. Any beneficiary
may disclaim all or any part of any benefit to which such beneficiary shall be
entitled hereunder by filing a written disclaimer with the Committee before
payment of such benefit is to be made. Such a disclaimer shall be made in a form
satisfactory to the Committee and shall be irrevocable when filed. Any benefit
disclaimed shall be payable from the Plan in the same manner as if the
beneficiary who filed the disclaimer had predeceased the
Participant.

       

      Section
14.            Amendment and Termination of
Plan:

       

      The
Company may amend any provision of the Plan or terminate the Plan at any time;
provided, that in no event shall such amendment or termination reduce the
balance in any Participant's Deferred Compensation Account as of the date of
such amendment or termination, nor shall any such amendment affect the terms of
the Plan relating to the payment of such Deferred Compensation Account.
Notwithstanding the foregoing, the following special provisions shall
apply:

       

      14.1           Termination in the Discretion of the
Employer. Except as otherwise provided in Sections 14.2, the Company in
its discretion may terminate the Plan and distribute benefits to Participants
subject to the following requirements and any others specified under Section
409A of the Code:

       

      14.1.1           All
arrangements sponsored by the Employer that would be aggregated with the Plan
under Section 1.409A-l(c) of the Treasury Regulations are
terminated.

       

      14.1.2           No
payments other than payments that would be payable under the terms of the Plan
if the termination had not occurred are made within 12 months of the termination
date.

       

      14.1.3           All
benefits under the Plan are paid within 24 months of the termination
date.

       

      14.1.4           The
Employer does not adopt a new arrangement that would be aggregated with the Plan
under Section 1.409A-1(c) of the Treasury Regulations providing for the deferral
of compensation at any time within 3 years following the date of termination of
the Plan.

       

      14.1.5           The
termination does not occur proximate to a downturn in the financial health of
the Employer.

       

      14.2           Termination Upon Change in Control
Event. If the Company terminates the Plan within thirty days preceding or
twelve months following a Change in Control Event, the Deferred Compensation
Account of each Participant shall become fully vested and payable to the
Participant in a lump sum within twelve months following the date of
termination, subject to the requirements of Section 409A of the
Code.

       

      Section
15.            Communication to
Participants:

       

      The
Employer shall make a copy of the Plan available for inspection by Participants
and their beneficiaries during reasonable hours at the principal office of the
Employer.

       

      Section
16.            Claims
Procedure:

       

      The
following claims procedure shall apply with respect to the Plan:

       

      16.1           Filing of a Claim for Benefits.
If a Participant or Beneficiary (the "claimant") believes that he is
entitled to benefits under the Plan which are not being paid to him or which are
not being accrued for his benefit, he shall file a written claim therefore with
the Committee.

       

      16.2           Notification to Claimant of Decision.
Within 90 days after receipt of a claim by the Committee (or within 180
days if special circumstances require an extension of time), the Committee shall
notify the claimant of the decision with regard to the claim. In the event of
such special circumstances requiring an extension of time, there shall be
furnished to the claimant prior to expiration of the initial 90-day period
written notice of the extension, which notice shall set forth the special
circumstances and the date by which the decision shall be furnished. If such
claim shall be wholly or partially denied, notice thereof shall be in writing
and worded in a manner calculated to be understood by the claimant, and shall
set forth: (i) the specific reason or reasons for the denial; (ii) specific
reference to pertinent provisions of the Plan on which the denial is based;
(iii) a description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or
information is necessary; and (iv) an explanation of the procedure for review of
the denial and the time limits applicable to such procedures, including a
statement of the claimant's right to bring a civil action under ERISA following
an adverse benefit determination on review. Notwithstanding the foregoing, if
the claim relates to a disability determination, the Committee shall notify the
claimant of the decision within 45 days (which may be extended for an additional
30 days if required by special circumstances).

       

      16.3           Procedure for Review. Within
60 days following receipt by the claimant of notice denying his claim, in whole
or in part, or, if such notice shall not be given, within 60 days following the
latest date on which such notice could have been timely given, the claimant may
appeal denial of the claim by filing a written application for review with the
Committee. Following such request for review, the Committee shall fully and
fairly review the decision denying the claim. Prior to the decision of the
Committee, the claimant shall be given an opportunity to review pertinent
documents and to submit issues and comments in writing.

       

      16.4           Decision on Review. The
decision on review of a claim denied in whole or in part by the Committee shall
be made in the following manner:

       

      16.4.1           Within
60 days following receipt by the Committee of the request for review (or within
120 days if special circumstances require an extension of time), the Committee
shall notify the claimant in writing of its decision with regard to the claim.
In the event of such special circumstances requiring an extension of time,
written notice of the extension shall be furnished to the claimant prior to the
commencement of the extension. Notwithstanding the foregoing, if the claim
relates to a disability determination, the Committee shall notify the claimant
of the decision within 45 days (which may be extended for an additional 45 days
if required by special circumstances).

       

      16.4.2           With
respect to a claim that is denied in whole or in part, the decision on review
shall set forth specific reasons for the decision, shall be written in a manner
calculated to be understood by the claimant, and shall set forth:

       

      
        	
                 
      

              	
                (i)

              	
                the
      specific reason or reasons for the adverse
  determination;

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                specific
      reference to pertinent Plan provisions on which the adverse determination
      is based;

              


      

       

      
        	
                 
      

              	
                (iii)

              	
                a
      statement that the claimant is entitled to receive, upon request and free
      of charge, reasonable access to, and copies of, all documents, records,
      and other information relevant to the claimant's claim for benefits;
      and

              


      

       

      
        	
                 
      

              	
                (iv)

              	
                a
      statement describing any voluntary appeal procedures offered by the Plan
      and the claimant's right to obtain the information about such procedures,
      as well as a statement of the claimant's right to bring an action under
      ERISA section 502(a).

              


      

       

      16.4.3           The
decision of the Committee shall be final and conclusive.

       

      16.5           Action by Authorized Representative
of Claimant. All actions set forth in this Section 16 to be taken by the
claimant may likewise be taken by a representative of the claimant duly
authorized by him to act in his behalf on such matters. The Committee may
require such evidence as either may reasonably deem necessary or advisable of
the authority to act of any such representative.

       

      Section
17.            Miscellaneous
Provisions:

       

      17.1           Set off. Notwithstanding any
other provision of this Plan, the Employer may reduce the amount of any payment
otherwise payable to or on behalf of a Participant hereunder (net of any
required withholdings) at the time payment is due by the amount of any loan,
cash advance, extension of credit or other obligation of the Participant to the
Employer that is then due and payable, and the Participant shall be deemed to
have consented to such reduction. In addition, the Employer may at any time
offset a Participant's Deferral Compensation Account by an amount up to $5,000
to collect any such amount in accordance with the requirements of Section 409A
of the Code.

       

      17.2           Notices. Each Participant who
is not in Service and each Beneficiary shall be responsible for furnishing the
Committee or its designee with his current address for the mailing of notices
and benefit payments. Any notice required or permitted to be given to such
Participant or Beneficiary shall be deemed given if directed to such address and
mailed by regular United States mail, first class, postage prepaid. If any check
mailed to such address is returned as undeliverable to the addressee, mailing of
checks will be suspended until the Participant or Beneficiary furnishes the
proper address. This provision shall not be construed as requiring the mailing
of any notice or notification otherwise permitted to be given by posting or by
other publication.

       

      17.3           Lost Distributees. A benefit
shall be deemed forfeited if the Committee is unable to locate the Participant
or Beneficiary to whom payment is due on or before the fifth anniversary of the
date payment is to be made or commence; provided, that the deemed investment
rate of return pursuant to Section 8.2 shall cease to be applied to the
Participant's account following the first anniversary of such date; provided
further, however, that such benefit shall be reinstated if a valid claim is made
by or on behalf of the Participant or Beneficiary for all or part of the
forfeited benefit.

       

      17.4           Reliance on Data. The Employer
and the Committee shall have the right to rely on any data provided by the
Participant or by any Beneficiary. Representations of such data shall be binding
upon any party seeking to claim a benefit through a Participant, and the
Employer and the Committee shall have no obligation to inquire into the accuracy
of any representation made at any time by a Participant or
Beneficiary.

       

      17.5           Receipt and Release for Payments.
Subject to the provisions of Section 17.1, any payment made from the Plan
to or with respect to any Participant or Beneficiary, or pursuant to a
disclaimer by a Beneficiary, shall, to the extent thereof, be in full
satisfaction of all claims hereunder against the Plan and the Employer with
respect to the Plan. The recipient of any payment from the Plan may be required
by the Committee, as a condition precedent to such payment, to execute a receipt
and release with respect thereto in such form as shall be acceptable to the
Committee.

       

      17.6           Headings. The headings and
subheadings of the Plan have been inserted for convenience of reference and are
to be ignored in any construction of the provisions hereof.

       

      17.7           Continuation of Employment.
The establishment of the Plan shall not be construed as conferring any
legal or other rights upon any Employee or any persons for continuation of
employment, nor shall it interfere with the right of the Employer to discharge
any Employee or to deal with him without regard to the effect thereof under the
Plan.

       

      17.8           Merger or Consolidation; Assumption
of Plan. No Employer shall consolidate or merge into or with another
corporation or entity, or transfer all or substantially all of its assets to
another corporation, partnership, trust or other entity (a "Successor Entity")
unless such Successor Entity shall assume the rights, obligations and
liabilities of the Employer under the Plan and upon such assumption, the
Successor Entity shall become obligated to perform the terms and conditions of
the Plan. Nothing herein shall prohibit the assumption of the obligations and
liabilities of the Employer under the Plan by any Successor Entity.

       

      17.9           Construction. The Employer
shall designate in the Adoption Agreement the state according to whose laws the
provisions of the Plan shall be construed and enforced, except to the extent
that such laws are superseded by ERISA and the applicable requirements of the
Code.

       

      17.10           Taxes. The Employer or other
payor may withhold a benefit payment under the Plan or a Participant's wages, or
the Employer may reduce a Participant's Account balance, in order to meet any
federal, state, or local or employment tax withholding obligations with respect
to Plan benefits, as permitted under Section 409A of the Code. The Employer or
other payor shall report Plan payments and other Plan-related information to the
appropriate governmental agencies as required under applicable
laws.

       

      Section
18.            Transition
Rules:

       

      This
Section 18 does not apply to plans newly established on or after January 1,
2009.

       

      18.1           2005 Election Termination.
Notwithstanding Section 4.1.4, at any time during 2005, a Participant may
terminate a Participation Agreement, or modify a Participation Agreement to
reduce the amount of Compensation subject to the deferral election, so long as
the Compensation subject to the terminated or modified Participation Agreement
is includible in the income of the Participant in 2005 or, if later, in the
taxable year in which the amounts are earned and vested.

       

      18.2           2005 Deferral Election. The
requirements of Section 4.1.2 relating to the timing of the Participation
Agreement shall not apply to any deferral elections made on or before March 15,
2005, provided that (a) the amounts to which the deferral election relate have
not been paid or become payable at the time of the election, (b) the Plan was in
existence on or before December 31, 2004, (c) the election to defer compensation
is made in accordance with the terms of the Plan as in effect on December 31,
2005 (other than a requirement to make a deferral election after March 15,
2005), and (d) the Plan is otherwise operated in accordance with the
requirements of Section 409A of the Code.

       

      18.3           2005 Termination of Participation;
Distribution. Notwithstanding anything in this Plan to the contrary, at
any time during 2005, a Participant may terminate his or her participation in
the Plan and receive a distribution of his Deferred Compensation Account balance
on account of that termination, so long as the full amount of such distribution
is includible in the Participant's income in 2005 or, if later, in the taxable
year of the Participant in which the amount is earned and vested.

       

      18.4           Payment Elections.
Notwithstanding the provisions of Sections 7.1 or 7.5 of the Plan, a
Participant may elect on or before December 31, 2008, the time or form of
payment of amounts subject to Section 409A of the Code provided that such
election applies only to amounts that would not otherwise be payable in the year
of the election and does not cause an amount to paid in the year of the
election that would not otherwise be payable in such
year.

       

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      FIRST
AMENDMENT TO THE

       

      CHS
NQDCP

       

      


       

      WHEREAS, CHS/Community Health
Systems, Inc. (the "Company") has previously established and currently maintains
the CHS NQDCP Plan (the "Plan"); and

       

      WHEREAS, the Company has
retained the right to amend the Plan in Section 14 of the Plan; and

       

      WHEREAS, the Company desires
to amend the Plan to not allow for assignments pursuant to domestic relations
orders, effective as of April 1, 2009; and

       

      NOW, THEREFORE, the Plan is
hereby amended in the following respects:

       

      1. Effective
as of April 1, 2009, the text of Section 2.27 shall be deleted and shall instead
be marked "Reserved."

       

      2. Effective
as of April 1, 2009, the last sentence of Section 12.1 shall be
deleted.

       

      3. Effective
as of April 1, 2009, Section 12.2 shall be deleted and Section 12.3 shall
be renumbered as Section 12.2.

       

      4. Except as
otherwise provided in this First Amendment, the Plan shall remain in full force
and effect.

       

      SIGNED this 31st day
of March, 2009, effective as of the dates set forth herein.

       

      
        
          	 
      	
                  CHS/COMMUNITY
      HEALTH SYSTEMS, INC.

                   

                   

                   

                
	 
      	
                  By:

                	
                  /s/
      Rachel A. Seifert

                
	 
      	
                  Title:

                	
                  Senior
      Vice
President